Should The U.S. Kidnap WikiLeak’s Founder Julian Assange?

I guess those who care about international press freedom can take comfort in the fact that Marc Thiessen no longer works for the government. On the Washington Post website, the former Bush Administration speechwriter and harsh interrogation booster, offers his view of WikiLeaks and its founder Julian Assange. In short, Thiessen calls for the U.S. to basically declare war on Assange, or presumably any other individual or organization that publishes documents the U.S. thinks might harm national security.

Assange is a non-U.S. citizen operating outside the territory of the United States. This means the government has a wide range of options for dealing with him. It can employ not only law enforcement but also intelligence and military assets to bring Assange to justice and put his criminal syndicate out of business. The first step is for the Justice Department to indict Assange.

Military assets? Thiessen goes on to argue that the U.S. has the legal authority to effectively kidnap Assange from foreign soil, even if such a kidnapping violates international law. He cites a 1989 legal analysis by the Reagan Administration: “In other words, we do not need permission to apprehend Assange or his co-conspirators anywhere in the world.” We can, apparently, just put a bag over his head as he orders a cappuccino in some Icelandic coffee shop and drag him off to. . . well, anywhere we want.

To be clear, Assange’s crime, according to Thiessen, is intentionally receiving and republishing classified information, something that is done with some regularity in the United States by respectable and responsible reporters working for top flight news organizations. To adopt Thiessen’s view, one would effectively have to reject the Supreme Court’s opinion in New York Times Co. v. United States, the so-called Pentagon Papers case from 1971.

Concurring in that case, Justice Potter Stewart observed, “In the absence of governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the area of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government.. . . . Without an informed and free press, there cannot be an enlightened people.”

Justice Hugo Black, with Justice William Brennan, added the following:

[W]e are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.

The fact that Assange is a foreigner seems to make these questions easier for Thiessen. But there is little doubt that Thiessen is endorsing a similar claim to “inherent power,” albeit through the military, that Richard Nixon asserted in 1971. (The irony should not be lost that Nixon later stepped down after his own misdeeds in office were disclosed by the press.) To read all the opinions in New York Times v. United States, see here.